BILL ANALYSIS SENATE JUDICIARY COMMITTEE A Charles M. Calderon, Chairman B 1995-96 Regular Session 1 7 7 0 AB 1770 Assemblymember Brewer As amended on January 31, 1996 Hearing Date: February 6, 1996 Public Utilities Code GEH:cb UTILITY SERVICES LANDLORD AND TENANT HISTORY Source: California Apartment Association Related Pending Legislation: AB 318 (Katz) Prior Votes: Not relevant. SPECIAL NOTE: This bill has been amended recently to remove all of its prior provisions and to replace them with the provisions of last year's AB 1785 (Brewer). AB 1785 was vetoed by the governor at the author's request because the author discovered after the legislative session had ended that a typographical error ("for" instead of "or") changed the intended meaning of the bill. AB 1785 was the subject of two lengthy hearings in this committee last year, and it passed 6 to 1 after being substantially amended by the committee. This bill, as amended, is identical to AB 1785 as it left this committee last year, except for the deletion of the typographical error and the addition of an urgency clause. KEY ISSUES 1. SHOULD MUNICIPAL UTILITIES BE PROHIBITED FROM CHARGING AB 1770 (Brewer) Page 2 subsequent tenants or landlords for a bill incurred, but not paid, by a previous tenant? 2. SHOULD MUNICIPAL UTILITIES BE REQUIRED TO OBTAIN THE CONSENT OF A LANDLORD BEFORE REQUIRING ITS TENANTS' UTILITY SERVICE TO BE BILLED TO THE LANDLORD'S ACCOUNT? 3. SHOULD MUNICIPAL UTILITIES BE ABLE TO REQUIRE A SECURITY DEPOSIT OF NO MORE THAN THREE TIMES THE AVERAGE MONTHLY BILL? PURPOSE The purpose of this bill is to prohibit a number of practices by municipal utilities that apartment owners believe are unfair because they make the landlord responsible for nonpayment of utility bills by their tenants. There are at least two types of municipal utilities: "municipally owned utilities", which are public utilities owned by cities (Section 10000 et. seq. of the Public Utilities Code); and "municipal utility districts" (MUDs), which are special districts organized for the purpose of providing utility service (Section 11500 et. seq. of the Public Utilities Code). There are hundreds of "municipally-owned utilities" in the state, but there are only two major MUDs: the East Bay Municipal Utility District (EBMUD), which provides water and sewer service, and the Sacramento Municipal Utility District (SMUD), which provides electrical service. Expanding prohibition against seeking payment from other people for previous tenants' nonpayment Under existing law, both types of municipal utilities, when they provide water service directly on the account of a tenant, are prohibited from seeking to recover from a subsequent tenant any charges which were incurred by a previous tenant. (Sections 10016 and 12811.5 of the Public Utilities Code). This bill would expand this provision to apply to the provision of all utility services, not just water service, AB 1770 (Brewer) Page 3 and clarifies that subsequent tenants can be charged for previous tenants' non-payment if the subsequent tenant is an adult who lived with the non-paying previous tenant. The bill also expands this provision to prohibit property owners from being charged for nonpayment by previous tenants. Requiring tenants' service to be on the account of the landlord Existing law authorizes both types of municipal utilities, when there has been a nonpayment by a previous tenant for water service, to "require that service to subsequent tenants be furnished on the account of the landlord or property owner." (Sections 10016 and 12811.5) This bill deletes this provision for both types of utilities and instead prohibits municipal utilities from requiring that service to subsequent tenants be furnished on the account of the landlord or property owner unless the property owner consents through a written agreement. The bill applies this prohibition to all utility services, rather than just to water service. This measure exempts master-metered buildings from its provisions. As a result, municipal utilities could continue to require landlords in master-metered buildings to be billed directly. Changing the ability to require deposits Existing law provides that the decision of both types of municipal utilities to require a new residential applicant to deposit a sum of money prior to establishing an account "shall be based solely upon the credit worthiness of the applicant as determined by the public utility." (Sections 10009.6 and 12822.6). This bill retains this provision requiring deposits to be based upon credit worthiness, but it prohibits both types of municipal utilities from demanding or receiving security in an amount that exceeds two billing cycles of service charges, or three times the average monthly bill. AB 1770 (Brewer) Page 4 COMMENT 1. Seeking payment from other people for previous tenants' nonpayment There does not appear to be any opposition to prohibiting utilities from trying to make another person pay for service rendered to a previous tenant, whether that other person is a subsequent tenant or a landlord, and whether the bill was for water or another utility service. The municipal utilities which are otherwise opposed to this bill state that they are unaware of any utility which is engaged in this practice. The only concern about this provision from utilities related to persons who claim that they should not be held responsible for non-payment by their previous roommate. AB 1785 was amended in this committee last year to address this problem by providing that a "subsequent tenant" shall not include any adult person who lived at the residence during the period that the charges or penalties accrued. 2. Requiring tenants' service to be on the account of the landlord a) Framing the issue This provision is based upon the premise that the fairest and cleanest way to enforce nonpayment of utility bills is to terminate the service of the non-paying customer. If tenants are billed directly for their own utility service, it is not unfair to terminate their service if they are delinquent in their payment. The ability to terminate the service of the non-paying party obviates the need to use liens on the property to secure payment, which landlords believe unfairly holds them responsible for tenants' irresponsibility. Tenants' groups do not oppose this provision, AB 1770 (Brewer) Page 5 because of the limitation on the amount of deposits discussed in the next comment. However, municipal utilities are strenuously opposed to the provision. The utilities want to avoid the political and legal problems associated with terminating basic utility service. They greatly prefer to enforce delinquent accounts through pursuing the more solvent landlord, even if they cannot secure their debt with a lien. Municipal utilities also point out that the only explicit authority in existing law for utilities to require service to be billed on the account of a landlord for usage by a tenant is for water service to a property at which there is a history of prior nonpayment by tenants. (Sections 10016 and 12811.5 of the Public Utilities Code). They believe that this is an appropriately limited power to protect their interests. b) Who is in a better position to influence tenant? The East Bay Municipal Utilities District argues that property owners are in a better position than utilities to ensure that the tenant pays its utility bill: "We do not believe it is unfair to the landlord to hold that person responsible for services rendered to his or her property. Clearly, the landlord is in a far better position to exercise control and influence over the tenant's actions by simply including the amounts owed for utility service within the rent owed to the landlord." In response, the Southern California Apartment Association believes that the opposite is the case: "... an owner has no control over a resident's motivation to meet his or her financial obligations. Municipalities have as much or more power than a property owner AB 1770 (Brewer) Page 6 to force the payment of an outstanding debt." c) Since the property owner benefits from service to the property, is it fair to make a property owner pay the tenant's bill? Best, Best and Krieger, writing on behalf of a number of its water and irrigation district clients, argues that it is better to charge the landlord for service rendered to its property than to raise rates for all other users: "If the tenant runs up a high water bill irrigating the property owned by the landlord, and then suddenly vacates the property without paying the bill, who would be more equitably responsible for the cost of the water that was delivered: the owner whose property benefited from the irrigation water, or the other customers who will have to absorb the cost if the property owner is not required to pay?o In response, the California Apartment Association (CAA) argues that property owners have already been assessed for the benefit of having utility service provided to their property: "Utilities are a community/service/benefit. Benefit is assessed twice. Initially as a property is developed, the developer pays an extension fee to extend utility lines to the development and a connection fee when a building permit is pulled for the unit. These costs are passed on to the property owner when the property is purchased. By requiring property owners to pay for tenant service charges, the property is paying for the benefit of connecting and using utilities three and four times over." d) Should municipal utilities be treated like privately-owned utilities? AB 1770 (Brewer) Page 7 CAA argues that utilities should be held accountable as businesses: "Efficient management of utility receivables after the first billing cycle should reveal account delinquencies that the utility can act on prior to service charges exceeding the amount of the security deposit. Other efficient business practices such as credit checking systems and uncollectables accounting can also be used to manage uncollectable debt without relying on uninvolved third parties, such as property owners." In response, municipal utilities point out that they are not the same as businesses because they cannot refuse to serve a particular customer, and because termination of service is often not a politically feasible remedy for them to pursue when a bill is not paid. In some cases, termination is not even legal because local public health officers prohibit water service from being terminated. Municipal utilities also argue that this bill will in fact create an unfair situation where municipally-owned utilities are treated differently than privately-owned utilities. Under Section 2714 of the Public Utilities Code, privately-owned utilities are guaranteed the ability to place an account in a landlord's name if there has been a history of nonpayment by prior tenants. The League of Cities argues that it is nonsensical to treat landlords served by municipally-owned utilities more favorably than landlords served by privately-owned utilities. should the bill be amended to apply its provisions to privately-owned utilities, too? 3. Changing the ability to require deposits Tenant organizations were concerned that, if utilities could not require service to be provided on the account AB 1770 (Brewer) Page 8 of the landlord when there has been a history of nonpayment by previous tenants, that the utility instead would require overly burdensome deposits from the subsequent tenants. As a result, this bill was amended to prohibit utilities from requiring security deposits in an amount that exceeds two billing cycles, or three months, of average service charges. Municipal utilities are opposed to this limitation because they believe that the utility should be able to make a case-by-case determination of what deposit amount is appropriate. Best, Best and Krieger raises the concern that the "average" service charge can often be exceeded by different tenants by three or fourfold by "imprudent water consumption practices or simple negligence in leaving faucets running or toilets in a "'stuck' position." Therefore, the deposit allowed under this bill may be significantly less than the amount owed by a delinquent tenant even for one billing cycle. This problem can be exacerbated if a tenant avails himself or herself of the provisions of Government Code Section 6071, which prevents municipal utilities from terminating service for nonpayment during the pendancy of an investigation of customer dispute. Support: California Apartment Association Opposition: California Municipal Utility Association; Association of California Water Agencies; League of California Cities Prior Legislation: AB 1785 (1995) Vetoed **************